State v. Rochester

• Decision Date: 11 December 1967
• Citation: 253 A.2d 558,105 N.J.Super. 529
• Parties: STATE of New Jersey, Plaintiff, v. Herman ROCHESTER, Defendant.
• Court: New Jersey Superior Court

Page 529

105 N.J.Super. 529

253 A.2d 558

STATE of New Jersey, Plaintiff, v. Herman ROCHESTER, Defendant.

Superior Court of New Jersey

Law Division.

Dec. 11, 1967.

Guy W. Calissi, Bergen County Prosecutor, for plaintiff.

Frederick L. Bernstein, Hackensack, for defendant.

BOTTER, J.S.C.

This is a motion to quash an indictment on behalf of Herman Rochester, defendant, by his assigned counsel. Herman Rochester was indicted by Indictment S--357--66, filed February 24, 1967, for unlawfully and maliciously committing an assault upon Donald Baker with a certain offensive weapon and instrument to wit: a .22 caliber six shot Burgo revolver which he, the said Herman Rochester, had in his hand then and there and held contrary to provision N.J.S. 2A:90--3, N.J.S.A. The indictment was by the Bergen County Grand Jury in the September term of 1966, the second stated session. The grand jury that actually indicted was organized in early January of 1967. I believe the organization date is the first day of the second stated session which begins right after the new year. In support of this motion to quash some affidavits have been submitted. One is by Frederick Bernstein, one by his secretary, Deidra Dembia, and one by the defendant himself. I mention this because there are several things in the affidavits which may be relevant. For one thing it is the place that describes, to the extent that we have a description, the defendant. Frederick Bernstein in his first paragraph describes him as a Negro youth who was charged with having assaulted a white boy, Donald Baker. The affidavit says, 'I understand that a number of the four other white boys who were with Baker at the time of the incident testified before the Grand Jury of Bergen County.' The affidavits generally indicate that Mr. Bernstein was not able to obtain all the information he wished to have to support his application quashing the indictment and therefore asked for a hearing so that he could subpoena certain records and obtain additional information.

The motion to quash is in general terms. It says that the defendant will apply for an order 'dismissing the indictment on the ground that the grand jury was not selected, drawn or summoned in accordance with the law and in accordance with the provisions of the Federal and the New Jersey State Constitutions.' There was attached to this motion a photocopy of a letter received by defendant's counsel on June 20, 1967. That letter is from the Prosecutor, Guy Calissi. The letter is dated June 16, 1967. It says, 'Dear Mr. Bernstein: This will acknowledge receipt of your letter dated June 9, 1967 concerning the above. To the best of my knowledge there were no Negro members of the Grand Jury that indicted your client, Herman Rochester. During the period of my term which will be thirteen years on July 1, 1967, there has been one Negro on the Bergen County Grand Jury. This was several years ago, I believe in 1964 or 1965.' The record shows that Spencer Wright was a Grand Juror in 1965 and that he was a Negro.

The testimony in this case consists primarily of testimony of members of the jury commission who have the responsibility of preparing lists of prospective jurors for service on petit and grand juries in this county. Unfortunately this motion was first heard in the summertime when Miss Hirt, who I believe is the chief clerk of the jury commission office, was absent. We did not have her testimony the first day. It was then continued on September 12, 1967 when we had the testimony of Mr. Valerio Callazuol, who is a jury commissioner. Then we had to have transcripts of the original hearings before we rescheduled the last hearing and ran into difficulty of counsel and Miss Hirt being on vacation, and we finally heard the balance of the testimony last Friday. That was three days ago. Introduced in evidence were various records of the jury commission's office and certain documents showing population statistics, particularly with respect to the Negro population of the County and various municipalities as compared to the population of the County as a whole. We also have introduced in evidence a manual for the use of jury commissioners of the State of New Jersey prepared by the Supreme Court of New Jersey, revised edition of May, 1961. We have as J--10 a breakdown of the apportionment of grand jurors in the County used in composing the master list of three hundred prospective grand jurors from which the ultimate number of twenty three grand jurors are selected. We have as an exhibit the questionnaire in the form prescribed by the Supreme Court which is used by the jury commissioners in determining eligibility and status of various people in the county for jury service. We have various lists of jurors, master lists of grand jurors, master lists of petit jurors. We have an order of the Court which prescribes the number of petit jurors and grand jurors to be selected for a certain session.

In the stated session commencing September 12, 1966 we have four thousand people listed on the petit jury master list as compared with three hundred on the grand jury master list. I believe the evidence shows that the petit jury master list has increased since then because of the increase in the number of judges in the court house and the need for additional petit jury panels. Offered as an exhibit by the defendant is an occupational analysis, this is J--13, of the eleven most recent Bergen County Grand Juries, to and including the first stated session of September, 1967, which shows sixty-six different categories of employment. However, various occupations may be embraced in some designations. For example, the business of builder may embrace the class of blue collar workers who are engaged in the building trade such as building craftsman, brick layers, or carpenters. This list was offered by the defendant to show that there is an absence from the grand jury list of persons who might be classified or called blue collar workers, members of the factory class, factory working class, truck drivers, and various craftsmen in the non-white-collar trades.

The defendant contends that from 1922 to 1965, when Spencer Wright served, there was only one Negro who served on a grand jury of Bergen County and that was a Mr. Morrow, who the defendant claims served at a time which by coincidence occurred around the time of the last attack in Bergen County on the composition of the Bergen County Grand Jury. I don't believe that was the last attack or that this was the only attack since that time. I believe there have been other motions in other cases prior to this one, between 1948 and today questioning the absence of Negroes on the grand jury. It isn't important whether there were other attacks or not. In 1965, a Mr. Wright served. I believe the record also shows that Roosevelt Brown of the New York Giants, a Negro, was drawn for the second panel of the third stated session of September, 1966; but I don't believe he actually served because that second panel was not used. I think that explains why he was drawn but did not serve.

The Grand Jury list of the third stated session, September term, 1948 may have inadvertently gotten into the list of exhibits. I found it among the exhibits that I have. I'm not sure if it was intended to be an exhibit or not but it does describe--assuming it's a public record and then I can refer to it--I think we have a general stipulation that reference could be made to jurors or grand jurors of prior terms--it describes E. Frederick Morrow of Hackensack, a telephone or telegraph switchman. It says 'tel. switchman.' There is in evidence a statement of a prosecutor who was involved in the case of State against Van Lewis, Jr. and John David Parker, Bergen County Court of Quarter Sessions. This, I take it, was the case in 1948 where a challenge was made to the composition of the grand jury.

The stipulation of the Bergen County Prosecutor at that time was:

'(1) That the adult population of Bergen County, New Jersey, for the years 1920, 1930 and 1940 is as set forth and classified in the Fourteenth, Fifteenth and Sixteenth Census of the United States, respectively.

(2) That the number of Negro residents of Bergen County, New Jersey, during the period from 1920 down to and including the present time, who possess the qualifications of grand jurors prescribed by Revised Statutes, 1937, Section 2:85--1, bears substantially the same ratio to the number of white residents of Bergen County, New Jersey, possessing said qualifications as the total Negro population of Bergen County bears to the total white population of Bergen County during said period.

(3) That from the period 1922 to and including the present time, no person of the Negro race has served on any Bergen County grand jury.'

The accuracy of that stipulation has not been questioned in this case nor has independent evidence been offered to show that, except that Miss Nina Anderson testified that she was with the Bergen County Grand Jury Commission for over forty years and I believe she said to her recollection there was no Negro juror on the grand jury in that period of time except for Mr. Morrow in 1948 and except for Negroes who have more recently served. The contention of the defendant is that the grand jury as composed violates his rights and violates the statutes of New Jersey because of alleged systematic and intentional and purposeful exclusion of Negroes from the Bergen County Grand Jury.

The defendant points to the occupational characteristics of those grand jurors who have served and contends that the disproportionate number of people who are engaged in professions of white-collar type work--there are many persons of professional background and training and persons who have occupations or various professions such as accountants, nurses, pharmacists, pilots, veterinarians, economists, if we call all of these things professions--they comprise a large portion of the...